Read Transitional Justice in the Twenty-First Century: Beyond Truth versus Justice Online
Authors: Naomi Roht-Arriaza
Transitional Justice in the Twenty-First Century: Beyond Truth versus Justice (32 page)
[39]
See, for example, Matthew Jardine,
East Timor: Genocide in Paradise
(Common Courage Press, 1999); Ben Saul, “Was the Conflict in East Timor ‘Genocide’ and Why Does It Matter?”, (2001)
Melbourne Journal of International Law
, 2, 477.
[40]
JSMP Submission to the Commission of Experts, April 6, 2005.
[41]
For further detail see,
Justice for Timor Leste: The Way Forward
(April 14, 2004), AI Index: ASA 21/006/2004 Amnesty International and Judicial System Monitoring Program.
[42]
Judicial System Monitoring Programme,
The Future of the Serious Crimes Unit
(January 2004); UNMISET,
Strategic Plan for Timor‐Leste Justice Sector: Post‐UNMISET Continuing Requirements and Suggested Mechanisms
(September 24, 2003).
[43]
By May 2004, the SCU estimated that it would have completed only 40–50 percent of investigations into the approximately 1,400 murders that occurred during 1999:
Justice for Timor Leste: The Way Forward
, note 41 above, at p. 21.
[44]
See Special Report of the Secretary‐General on the United Nations Mission of Support in East Timor, February 13, 2004, UN Doc S/2004/117, at para. 32.
[45]
The process of consultation was undertaken by a steering committee of East Timorese and internationals in late 2000–01. See, for example, “Establishing a Commission for Truth, Reception and Reconciliation in East Timor: Operating Principles and Mandate”, Concept paper submitted to UNTAET Human Rights Unit, November 2, 2000 (copy on file with author).
[46]
Interview with General Prosecutor, Dili, September 2003.
[47]
For further detail on the proposed amnesty law, see
The Draft Law on Amnesty and Pardon
(November 2002), Judicial System Monitoring Programme.
[48]
Interview with General Prosecutor, Dili, September 2003.
[49]
In February 2004 this was estimated to number 28,000 former refugees: Special Report of the Secretary‐General on the United Nations Mission of Support in East Timor, February 13, 2004, UN Doc. S/2004/117 at para. 9.
[50]
Law 26/2000.
[51]
For detailed examinations of the shortcomings of the trials, see David Cohen,
Intended to Fail: The Trials before the Ad Hoc Human Rights Court in Jakarta
(August 2003), International Center for Transitional Justice; also,
Justice for Timor Leste: The Way Forward
, note 41 above.
[52]
Section 4.2 of UNTAET Regulation 2000/30. See the discussion in
Justice for Timor Leste: The Way Forward
, note 41 above at pp. 8–9 and 58–9.
[53]
Memorandum of Understanding Regarding Co‐Operation in Legal, Judicial and Human Rights Related Matters
(April 6, 2000), UNTAET and Attorney‐General of the Republic of Indonesia.
[54]
See the discussion in Nehal Bhuta, “Great Expectations – East Timor and the Vicissitudes of Externalised Justice”, (2001)
Finnish Yearbook of International Law
, XII, pp. 179–203 at 190.
[55]
East Timor National Alliance for an International Tribunal, Press Release, February 15, 2004.
[56]
Jill Joliffe, “UN Accused of Blocking East Timor Warrants”,
The Age
, January 14, 2004. The motion, however, was dismissed by the Court:
Prosecutor
v.
Wiranto and others
, Case No. 05/2003, Decision on the Motion of the Deputy General Prosecutor for a Hearing on the Application for an Arrest Warrant in the case of Wiranto, February 18, 2003. While a warrant has since been issued, the Timorese General Prosecutor (and Attorney‐General) has refused to allow its implementation.
[57]
AP, “Timor Leste's Premier Wants War Crimes Court”,
Straits Times
, May 31, 2003,
http://straitstimes.asia1.com.sg
; Jill Jolliffe, “Timor PM Slams UN on War Criminals”,
Asia Times
, May 16, 2003,
http://www. atimes.com/atimes/
. Although initially more vocal supporters of holding Indonesia accountable, Prime Minister Mari Alkatiri and Foreign Minister Jose Ramos Horta have become increasingly reticent, particularly since the indictment against Wiranto was issued: see, for example, “Dili says relations with Republic of Indonesia more important than justice”,
Jakarta Post
, March 5, 2003; “PM Alkatiri wants amnesty for crimes of 1999”,
Lusa
, June 12, 2003.
[58]
JSMP Press Release, “ ‘Commission of Truth and Friendship’ Seeks to End the Search for Justice whilst ‘Commission of Experts’ Keeps it Alive”, March 14, 2005.
[59]
For example, the court failed to apply international jurisprudence on the tests for crimes against humanity and the defenses of superior orders and duress. Suzannah Linton and Caitlin Reiger, “The Evolving Jurisprudence and Practice of East Timor's Special Panels for Serious Crimes on Admissions of Guilt, Duress, and Superior Orders”, (2001)
Yearbook of International Humanitarian Law
, 4, 1.
[60]
David Cohen, “Seeking Justice on the Cheap: Is the East Timor Tribunal Really a Model for the Future?” (2002)
Asia Pacific Issues
, 61, 1.
[61]
Chris af Jochnick and Roger Normand, “The Legitimation of Violence: A Critical History of the Laws of War”, (1994)
Harvard International Law Journal
, 35, 49 at p. 56.
[62]
Cohen, “Seeking Justice on the Cheap”, note 60 above at p. 7, in reference to the proposed Extraordinary Chambers to prosecute the Khmer Rouge in Cambodia.
[63]
Special Rapporteurs' Report
, para. 73.
[64]
The pre‐eminent legal and human rights NGO Yayasan HAK was told of the proposal, described as a “back‐door international tribunal”, only after the
regulation had already been drafted: interview with Joaquim Fonseca (Yayasan HAK advocacy director), November 20, 2002.
[65]
Justice in Practice: Human Rights in Court Administration
, note 33 above.
[66]
See Suzannah Linton, “Prosecuting Atrocities at the District Court of Dili”, (2001b)
Melbourne Journal of International Law
, 2, p. 414.
[67]
Interviews with the following people: SCU Public Information Officer, former Head of UNTAET Human Rights Unit, and General Prosecutor, Dili, September 2003.
[68]
Kay Rala Xanana Gusmão,
Statement by His Excellency President of the Democratic Republic of Timor‐Leste
(February 28, 2003), Dili,
http://www.jsmp.minihub.org/Reports/otherresources/ xgonscu28feb03jr01mar03.htm
.
[69]
UNMISET,
Press Release
(February 25, 2003),
http://www.un.org/Depts/dpko/missions/unmiset/pr250203b.pdf
.
[70]
UNMISET Strategic Plan for the Justice Sector, note 42 above at para. 8.
[71]
Jones,
Human Rights and Peacekeeping in East Timor
, note 8 above at p. 11.
[72]
Frederick Egonde‐Ntende, “Building a New Judiciary in East Timor”, note 19 above.
[73]
Within the international politics of peacekeeping operations, nation‐building is seen as an inappropriate task for the UN to engage in or at least fund from the mandatory assessed contributions of states: see
A Review of Peace Operations: A Case for Change
, Conflict Security and Development Group, King's College London, April 30, 2003.
[74]
Report of the High Commissioner for Human Rights
, note 15 above paras. 17–19. See also Ministry of Justice and United Nations Development Program,
Mission Report Timor Leste: Joint Assessment on the Judiciary System
(November 2002), UNDP, Dili.
[75]
Mohamed Othman,
East Timor: A “Viable” or “Clumsy” Model of Accountability for Serious Human Rights and International Humanitarian Law Violations
(2002), unpublished paper prepared at the Chr. Michelsen Institute of Development Studies and Human Rights.
[76]
Letter dated January 11, 2005, from the Secretary‐General addressed to the President of the Security Council (Timor Leste, Independent Commission of Experts), UN Doc. S/2005/96, February 18, 2005.
[77]
UN Security Council, letter dated June 24, 2005, from the Secretary‐General to the Security Council, UN Doc. S/2005/458, July 15, 2005, Annex II.
The chapters in this Part focus on the interplay among different spheres or levels on which transitional justice efforts can occur, and the particular challenges and advantages of working at each of these levels. Of course, the question of whether justice should be sought at the local, national or international level is not an either/or question: multiple levels are needed. For example, it is difficult to imagine the
gacaca
process in Rwanda described in Chapter
8
having any legitimacy were it not for simultaneous efforts at the international (ICTR) and national levels to deal with the most serious offenders. But in these cases there is either a new emphasis on local‐level efforts, a new conditionality imposed by outside intervention, or a new reopening from outside that intersects with domestic processes.
Chapters
7
and
8
exemplify the local‐level approach, in which decentralized fact‐finding, justice and, to some extent, reparation, is meted out by local villagers to others who committed crimes (the “little fish”) through informal processes based in part on customary law.
Patrick Burgess, principal legal counsel to the East Timor Commission for Reception, Truth and Reconciliation, talks about that Commission's innovative Community Reconciliation Procedures (CRPs). These village‐level hearings for low‐level offenders exchanged public disclosure, apology and sometimes minimal reparations for legal amnesty and social reintegration into their communities. Burgess finds that the CRPs were a resounding success despite problems with integration into the formal justice system and concerns about potential victim coercion and the inability to get at the major masterminds of the crimes.
Local‐level justice is also the centerpiece of Rwanda's attempt to deal with the hundreds of thousands of people accused of participating in the 1994 genocide. Tim Longman explores whether such informal, non‐Western based accountability can serve as a basis for justice and at the same time be consistent with human rights norms. He also looks at
the interplay of such local‐level initiatives with simultaneous national and international trials.
Chapters
9
and
10
turn from the micro to the macro level, focusing on the ways in which national transitional justice processes are shaped – and deformed – by outside intervention. Eric Stover, Hania Mufti and Hanny Magally write in Chapter
9
on the ways in which the US occupation of Iraq during the time of the Coalition Provisional Authority mishandled key decisions regarding transitional justice strategies, resulting in a process lacking in local consultation, ownership and legitimacy while at the same time unable to avail itself of broad‐based international support and experience. Combined with the sheer scale of the violations and the continuing political and security problems, the result is an uncertain future for transitional justice initiatives.
In Chapter
10
, Patti Gossman explores the possibilities for accountability in the wake of 25 years of war, occupation and invasion in Afghanistan. Here too, US needs in combating Al Qaeda shaped the current policy of non‐confrontation with the “warlords” responsible for massive violations, resulting in lost opportunities. On the other hand, the emergence of a still fragile civil society and national human rights institutions provides some cause for hope that a locally supported process for documenting the war's toll and holding to account those responsible will eventually emerge.
Chapters
11
and
12
look at the transnational and temporal dimensions. In both countries examined, Chad and Argentina, early attempts at accountability fell short, and were followed by years of inaction. In both, external processes – transnational investigations and extradition requests – affected local courts, advocacy groups and government officials.
Reed Brody's account of the prosecution(s) of Hissène Habré, the ex‐dictator of Chad, shows both the promise and the limits of transnational investigations as a means of jump‐starting domestic justice. After Habré was indicted in Senegal and then Belgium, new possibilities opened up for victims, but they were restricted by the limited transformation of the government. The conditions that created the classic “boomerang” effect of the Pinochet case, where an outside stimulus permanently changed the possibilities of justice, are not always present. As Brody put it, “Chad is not Chile.”
On the other hand, Kathryn Sikkink and Carrie Walling look at the successful reopening of the issue of justice for past violations in Argentina, the pioneer in both investigative commissions and trials of human rights violators. They find that, rather than a clear boomerang
effect, in Argentina domestic legal innovations combined with strategic use of transnational investigations and prosecutions to find cracks in a wall of domestic impunity and break it open. Sikkink and Walling place the Argentine experience within the larger context of an empirically demonstrated “justice cascade” of increasing use of both prosecutions and truth commissions worldwide, a theme that is further explored in the concluding chapter.
